McNamara Law Celebrates Two Milestones this Month!

Our very own senior certified law clerk, Mandi Renee Liston, has graduated from the Creighton University School of Law. Mandi joined McNamara in March of 2016 as the Firm’s very first law clerk. From the beginning, Mandi demonstrated a keen command of law and tireless work ethic. Her infectious smile and genuine personality endeared her to clients and co-workers alike. Mandi’s work efforts and constant dedication have earned her a permanent spot on McNamara’s legal team. She will rejoin the office this fall as a first-year associate.

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We are so very proud of Mandi, and invite you all to join us in congratulating her on her successful tenure at law school. We wish her the best of luck as she studies for the bar this summer!

 

Scott Eckel joins the McNamara legal team in the twilight of his law school tenure.  While at the Creighton School of Law, Scott has developed a fervor for aspects of the law which include but are not limited to, contract review, business law, property law, and legal research and writing.  While Scott has thoroughly enjoyed those specific areas, he hopes to continue to refine his legal skills through the Creighton Law Review as a Lead Articles Editor and as a member of the Moot Court Board.  

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Hailing from the Windy City, Scott loves all things Chicago (minus the Bears). Stemming from his past life in sales, Scott has always enjoyed traveling. Last summer, his travels took him to California where he worked as a law clerk. He hopes to visit the East Coast this coming summer, and enjoy more of the Midwest. In his spare time he enjoys staying active, tending to his indoor garden, and working on his aquarium.  

 

When it Rains it Pours: Why Contracts are Life Savers for Small Businesses 

By Dominique O'Connor

Picture this…

You’re a hard-working Nebraska startup that was recently acquired by Tesla (way to go)! What’s a savvy entrepreneur like you going to do? Celebrate of course! You email a few of your close friends and family to toast your success at an outside garden party. Being as well-connected as you are (way to network!), your friend Karen offers to cater the event. Karen made amazing food for your mum’s birthday last year, so you’re all about it. Plus, she gave you the friends and family discount (way to hustle!). You arrange for Karen to craft a delectable menu for fifty people, using only the freshest and most exclusive ingredients (because, after all it’s Tesla). The big day rolls around and…

Thunder. Lightning. Rain.

No garden party.

Who pays for the food? What about the tables, chairs, and décor that Megan arranged, but you didn’t ask for? If you don’t pay up, does Megan have to pay the cater waiters she hired to assist her?

Much of the litigation that we deal with at McNamara Law Firm arises from contracts that go bad. Often, it’s not for lack of business acumen. Rather, the parties involved readily fail to fully understand what they are agreeing to. In general, parties expect that the deals they make will go smoothly. Yet, for the average small business person, it can be tough to anticipate the complexities of an agreement, the liabilities, and potential pitfalls they may bring.

Creating a thorough written sales agreement that anticipates and addresses these types of issues can keep businesses out of costly disputes.

Now let’s revisit our savvy entrepreneur and Karen the Caterer:

Scenario A - Savvy didn’t execute an agreement with Karen. Due to the pricey catering costs (yellow-fin tuna does NOT come cheap people), Karen is demanding full payment. In addition, because of an off-hand comment Savvy made, Karen believes Savvy should pay for the additional services she performed, including arranging for seating and support staff. Savvy’s Tesla check won’t come in for months, and the businesses’ accounts payable are through the roof. Savvy definitely cannot afford to pay for the additional costs Karen incurred. Savvy must either take out a personal loan or face the costs of litigation to settle the dispute.

Scenario B - Savvy sends a written email to Karen asking her to cater. In return, Savvy states that he will pay for all catering costs, and includes that the email should serve as their written contract. Everything is the same as in Scenario A, except now Karen is demanding that she be paid by the end of the week. Is Savvy bound by this date? Are the rental chairs and cater-waiters included in the “catering costs?” Savvy thought he was being diligent by creating a written “contract,” but was he?

 

Scenario C - Savvy hires a small, up-and-coming law firm to draft a contract. The contract states that Karen, as an independent contractor, will provide catering services on May 10th, from 5pm-12 midnight for Savvy. The contract specifically details the term “catering services” to include shopping for, preparing, delivering, set-up, and serving all menu items therein.” The contract also provides that Karen may not change the menu or make a purchase without obtaining Savvy’s approval. Karen is to be paid the day of the catering for the cost of the services, but not above $550. In the event the party is cancelled, Savvy will only pay $300, the cost of purchasing the food.

These are just a few scenarios that illustrate the complexities and issues that may arise in daily transactions. Creating a contract not only protects the interests of everyone involved, they also: 

Leave a great impression - When you close a deal with a written contract tailored specifically to your business, customers believe that you’re going to handle their project in a professional manner.  

Gets everyone on the same page - A written agreement allows for all parties to have a more complete understanding of the details relating to the services being provided.  When people know what to expect, projects go smoothly.

So whether you’re an upcoming tech start up like Savvy, an ambitious caterer like Karen, a vibrant Etsy entrepreneur, or an established small business, your business can benefit from a contract that is specifically tailored to your needs. Don’t be like Savvy and get caught in the rain!

For more information, contact us at McNamara law firm.

An earlier version of this article was originally posted in the Fall 2015

Skeletons in Your Corporate Closet? 5 Things we Learned from the Bill O’Reilly Sexual Harassment Scandal.

This is the first in our new series: The New Small Business Corp. Often, McNamara Law Firm will provide concise and accessible insights into legal issues affecting small businesses, start-ups, and local entrepreneurship. We’ll be sure to share these on Facebook as they become available!

~ Dom (2L law clerk and guest blogger)

YOU'VE LIKELY seen the recent developments surrounding Bill O’Reilly, and the sexual harassment allegations lobbed against him as a popular Fox News host. If you haven’t, here’s what went down…

About a week ago, the New York Times ran an article detailing Fox News’ treatment of the notorious t.v. host, and the allegations of sexual harassment plaguing O’Reilly and the popular television network. The Times noted that at least five women were paid by the network to settle their sexual harassment claims to the tune of $13 million. The claims themselves stemmed from former Fox News employees who worked with O’Reilly, or were guests on his show. Many claimed that O’Reilly made unwanted sexual advances and vulgar comments to them on multiple occasions. Yet, some of the alleged behavior was not so explicit. A few of the women claimed that O’Reilly attempted to pursue sexual relationships with them, and due to his position at Fox, they felt compelled to acquiesce in fear of losing their jobs.

Since breaking the story, according to the Times, Fox News has taken a less than valiant approach. According to the article, the network attacked the credibility of the accusers, stating that none of O’Reilly’s accusers used a known hotline to complain about the t.v. host, even though they could do so anonymously. 

Yet, others are not so quick to dismiss the allegations. In a subsequent article, the Times noted that many of Fox’s most prominent advertisers were pulling their ads from O’Reilly’s show. In addition, the Times reported that at least three women in the Fox newsroom questioned Fox’s leadership and commitment to maintaining a respectable work environment. 

So, what can small businesses learn from the O’Reilly fallout? Here are five main takeaways to ensure that sexual harassment never becomes an O’Reilly factor in your small business… 

1) Your settlement terms may be confidential, but the events surrounding it are probably fair game.

Often, the terms and amounts of settlement are protected by confidentiality and non-disclosure agreements. However, the events surrounding the settlement—including the accused’s prior conduct with former employees—may not be. It is important for small business owners to thoroughly confer with their attorney to discuss what information is protected by a confidentiality clause, and information that is available to the general public. Coming out ahead of a potential sexual harassment suit may save your business from negative publicity, loss of morale, and employee fallout.

2) You may owe a duty to your clients to disclose sexual harassment.

Just like the advertisers who pulled their business from Fox News, clients are wary of being associated with businesses which may negatively impact their image. It is important for small businesses to immediately contact their legal team to review client contracts in the midst of a sexual harassment claim. Often, certain contracts require full disclosure of events which may materially affect ongoing business. For businesses that depend on a pristine and trustworthy image, an un-disclosed sexual harassment claim could violate an otherwise solid business relationship.

3) A thorough investigation is definitely warranted.

There is no doubt that O’Reilly brings in a flood of viewers for Fox News, which is why some are surmising that Fox’s tepid response is really just a way to buy time to investigate just how deep these allegations run. It is important for small businesses to also investigate thoroughly. Failure to do so could expose a business to claims of negligence or vicarious liability. In addition, most sexual harassment claims are investigated by the local equal opportunity commission which will diligently look at a businesses’ attempts to rectify and correct any possible harassment. Most importantly, businesses should aim to ensure that the work environment is safe for employees, and communicate the ways in which they will cultivate a safe workplace. 

4) Brush up on your First Amendment law: Social media tends to play a big role.

The O’Reilly ordeal is taking the Twitterverse by storm. Not only are supporters and challengers trading legal jabs via tweet, the public is keeping a close eye on commentary. Though corporations and business entities are protected under the First Amendment, small businesses should strictly scrutinize what communications are made by the company via social media. Contractual conditions may require that the terms of a sexual harassment settlement, or the events surrounding it, may never be discussed with other persons. Though businesses may wish to address allegations, they should only do so with a sound understanding of their obligations under the settlement. 

5) If your company doesn’t have a sexual harassment policy, now’s the time to make one.

Don’t ask don’t tell? Zero tolerance? Boys’ club? The biggest takeaway from the O’Reilly scandal is that businesses MUST have a sexual harassment policy. First, creating a policy apprises everyone of the duties they owe to one another, as well as the conditions necessary to maintain their employment. Second, in the face of an allegation, a sound policy ensures that companies take sufficient steps to investigate and adjudicate any sexual harassment claims alleged. Third, if the allegation moves to litigation, a sound policy is essential to insulate businesses from potential liabilities that come with a sexual harassment suit. Lastly, as millennials begin to enter the workforce in droves, many look to see whether businesses embrace and address women’s rights issues as a part of their corporate platform. A solid sexual harassment policy not only ensures that millennials feel safe in the workplace, it demonstrates that your business aims to effect change at a local level.

    For more information, or to create a sexual harassment policy for your business, please contact McNamara Law Firm, PC, LLO.

Behind the Scenes with Patrick McNamara

By Dominique O'Connor

As the new kid on the block, I decided to take a few minutes to get to know a little bit more about the man that signs my checks. Patrick’s story interested me from the start. Educated in New York, he moved to Omaha with his wife, Kate. Shortly after, he opened his own law firm. Within a year, he had a paralegal, Heidi. Not long after came his first law clerk, Mandi. With such a penchant for selecting talent and representing clientele, I had to see what drove the man with the plan.

Dom O’Connor: State your name for the record…ha ha. 

Patrick McNamara: Ahhh…Patrick E. McNamara (chuckles)

DO: Ok, so my first question is, how hard is it to transfer from the courtroom to normal life?

PM: Don’t think I really understood flexibility and creativity required when I was in law school. Like, what do you mean, I mean…I never really turn it off..ha ha.

DO: So, you’re always, like “ON.” That sounds exhausting!

PM: Well, I mean, the skills you use in the courtroom or in law get transferred to real life every day.

DO: Like?

PM: I got my wife and I a restaurant reservation this weekend for a place that supposedly didn’t have any left.

DO: Wow…that’s useful, ha ha. Second question, alright…do you feel any connection to any prominent legal characters played on TV right now?

PM: I shouldn’t say Saul Goodman, right? (collective laughter).

DO: Well, I mean, Saul, despite some of his faults is always passionate about defending or representing his clients so…

PM: I like characters who are unorthodox, um…

DO: Like, give me an example. Harvey from Suits?

PM: What was Billy Bob’s character in the show Goliath? There are a lot that I like.

DO: Ok. So, being a principal attorney, how has your vision of law changed from when you first got out of law school to your first actual job, to now?

PM: It feels like you have to be a lot more flexible than when I first left law school. I think when you first get out of law school you think everything is so concrete. Or that there’s a black and white way of doing things. But, in practice you learn how you’re going to handle the case. You learn about different counsel, or the judge’s personality. 

DO: Right. So, working from then until now, how would you say the real-life application has helped you in the practice of law?

PM: Well we like happy clients (chuckles). In order to run efficiently and not waste time, we have to learn that [practical law].

DO: Yeah, no I agree. So, in your practice, have you ever had to change strategy?

PM: (chuckles) Every day…

DO: I’m talking like huge curveballs here! Can you give me an example?

PM: Yeah I mean…Client decides to sell company and makes the negotiation moot. Or you learn about a smoking gun really late in the game. No matter how much you make it clear that clients should be forthcoming, you’ll always find that some aren’t as forthcoming, and it can change your case strategy. But, sometimes clients are embarrassed, or they don’t realize how a piece of information changes the nature of their claim.

DO: How do you get around that curveball?

PM: Clear and continued communication, one step at a time. Readdress any new issue that comes in with the same fervor that you would have given. Don’t let it prejudice your case. Just roll with it.

DO: Good advice. Speaking of good advice, what advice would you give to an attorney hoping to open their own firm, or transition to new area of law?

PM: Work somewhere where you get thrown in the fire. It’s amazing how fast you can learn something that way. You learn a lot when you put out fires. Work somewhere where they give you a lot of free reign and require you to give a lot.

DO: Yeah, I always hear that New York attorneys work really hard and for a lot of hours. But people here put in that kind of work too.

PM: Exactly.

DO: How do you feel about portrayals of Midwestern versus. coast attorneys?

PM: Courtesy goes very far here. You’re not bullied as much. Maybe because it’s a smaller community, it’s a little easier to figure out …there’s a lot more resources here if you don’t know what you’re doing…other attorneys, the courts…

DO: Yeah, they’ve definitely helped me out…and I’m just a law clerk (laughs). So, after a day of crushing it in the office, what are your top 5 ways to relax.

PM: Golf. I don’t like to exercise but I do …intensive though. I like to be driven by a coach because it allows you to clear your mind. The intensity keeps you from your mind wandering. If I just go to the gym, I’ll just dwell on things. I like to ride my bike. I’ll probably do half of RAGBRAI this year….I did all of last year which ended up being 420 miles.

DO: That is intense. You have two left.

PM: I like hanging out with my wife and friends. And travelling.

DO: Awesome. Well, is there anything else you want to let us know?

PM: I’m excited to start school next week.

DO: Remind us where?

PM: Creighton Heider School of Business, I’m getting my MBA.

DO: Awesome, Go Jays!

PM: (chuckles) Exactly!

DO: Thanks for your time, this has been great.

PM: No, thank you!

Get Serious about Succession Planning

Recently, the National Law Review posted an article about the benefits and wisdom of law firm succession planning. In the article, the writers spoke about the concerns and considerations of succession planning in law firms. However, such concerns span across both the legal and business field. Here’s why…

Baby Boomers are Retiring in Large Numbers

Both businesses and law firms are seeing a large bulk of their managing partners reach retirement age. The NLR article notes that in approximately 63% of law firms, partners aged 60 and older control half (if not more) of the firms’ revenue. This trend is also prevalent amongst businesses established prior to the early 2000s. With Baby Boomers reaching retirement age, businesses and firms must prepare to transition financial control to upcoming management. Therefore, both firms and businesses should begin to develop plans for succession, identify potential leaders, and structure the development of talent. 

Yet, succession planning does not need to be tedious, but does require proactivity. Generally, both firms and businesses handle complex matters that may seem to preclude partners and management from thinking of the possibilities of retirement. Yet, it’s important to develop a smooth transition from active work to retirement in order to ensure that those long hours in the office are preserved. There can also be some really simple and straightforward tax saving techniques incorporated if a business can identify potential future leaders early on.  Here are two simple measures that businesses and firms can take to ensure prosperity.

1.  Identify the key positions that must be filled when integral members retire. Keep an eye out for ambitious and upcoming junior members who may be suited for the task. 

2.  Incentivize more senior members to identify the tasks that must be completed before they retire. Don’t let your #1 closer retire without a plan of action, especially if you have a major deal still in the works.

So, there you have it! Two very simple ways to start your firm or business on the successful path to succession planning! Still have questions? Contact McNamara Law Firm PC, LLO for more information.

*This post was written by Dominique O'Connor as commentary to the National Law Review article entitled “Law Firm Succession Planning: The Future is Now so Make a Plan,” published February 5, 2017.

Flag on the Play - Should Trademark Registrations be Subject to Scrutiny Over Whether They are Disparaging?

By Mandi R. Liston

Between the lawsuits, media discussion, and public “outcry”, it is very likely you have heard about the controversy surrounding the Washington Redskins trademark dispute.  Different courts have ruled, overruled, and ruled again that the registered trademark “Redskins” is disparaging to Native Americans and therefore not registerable (please note; a trademark can still protected even without federal registration). Now the Redskins are looking to be backed by the Supreme Court.

Recently, an appellate court has ruled in favor of a Seattle based band called “The Slants,” finding that it is unconstitutional to deny trademark registration just because it is “disparaging.”   If the Supreme Court upholds this ruling, it is very good news for the Redskins.  It would allow a plethora of trademarks to be now registerable that were previously denied on the same grounds. Marks such as a depiction of Buddha for beachwear, use of the name of a Muslim group that forbids smoking as a cigarette brand name, and an image consisting of a large "X" over the hammer and sickle national symbol of the Soviet Union.  All of these marks would now be registerable. 

What do you think? Should the government be able to deny registration of disparaging marks? Or should all trademarks be registerable?

Trademarks are an essential part of any business. They let customers and clients know who you are as a company and it is crucial to protect your trademarks in order to protect your brand.  If you are looking to register a trademark, or have questions about the process, McNamara Law Firm can help!

Overtime Pay for Overtime Workers

By Mandi R. Liston

A big change is coming to businesses and employees across the nation.  On Wednesday May 18, the Labor Department issued new regulations that would double the threshold under which salaried workers must be paid overtime.  The rule that takes effect December 1, raises the salary for employees that qualify for overtime from $23,660 to $47,476.  

What does this mean for the 4.2 million workers the regulation is supposed to help? Employers are facing various options. 1. Pay the overtime to the newly qualified employees; 2. Transfer salaried employees to hourly pay and reduce hours; 3. Raise the salary of employees to exceed the threshold; among other options. 

McNamara Law Firm can help businesses affected by the new regulations and determine the best course of action for compliance.

Call us today so that we can advise you of your rights and how you are affected by the new regulations.

 

Requiring Employees to "Stay Positive" Might be Overstepping Bounds

By Mandi R. Liston

Thanks to the mathematicians over at Ask.com, it has been determined that about one-third or 30 percent of human life is spent working. The average working week in the United States consists of 40 hours of work. Most people take a few holidays every year. On an average, most people spend about 25 to 30 years of their lives working. Armed with this knowledge, it would appear to be in the best interest of both employers and employees to make the most of those years. However, if you happen to find yourself having a bad day at work, it is now your legal right to do so.

The National Labor Relations Board recently found that a clause expecting employees at T-Mobile to maintain a “positive work environment” was too restrictive, and therefore unlawful.  The rationale was that, in context with other unlawful provisions, the clause would put an employee’s right to organize in danger (it is your legally protected right to organize a union!) because most organization stems from negative situations. It is important to note that the ruling does not prohibit employers from requiring, for example, an employee act professional. They just can’t require an employee to be happy about it. 

Positivity in the workplace is important, though. Sarah Rense at Esquire stated that “[p]ositivity is, of course, good for the workplace, and in today's environment, negativity is terrible PR… Good publicity (and productivity) stems from happy worker stories.”  This is very true. Business owners cannot legally force employees to be happy all the time, but this ruling creates an incentive to create a positive work environment.  The ruling does not take away an employer’s right to create a positive work environment with traditional methods such as benefits or free snacks.  It only takes away the ability to require positivity through restrictive employee handbook language. 

McNamara law firm can help business owners who want to encourage a professional work environment, but also need to know whether their current handbooks comply with the recent ruling by the NLRB.  We can also help employees who are unsure whether or not their rights are infringed upon by restrictive employee handbook language. We know that a positive work environment is important to business owners and employees alike, and we’re here to help you (legally) achieve that goal!  

Sources:

http://www.esquire.com/lifestyle/money/news/a44685/work-happiness/

http://www.ask.com/math/percentage-lives-spent-working-599e3f7fb2c88fca

California Judge Gives the Green Light to Uber Sexual Assault Claims

By Mandi R. Liston

 

Did you ever wonder who would be responsible if you were injured while on an Uber ride? What about if you are attacked? Are you stuck going after the driver, or can you hold Uber accountable? We’re one step closer to getting that answer.

Recently, a California federal judge has ruled against Uber’s motion to dismiss two sexual harassment suits, finding that it may be possible for Uber to be held responsible for the actions of its drivers. The difference between only being able to sue the driver personally and suing Uber vicariously results from the court deciding whether Uber's drivers are independent contractors or employees. The distinction is crucial.  If the court finds that Uber drivers are independent contractors it will shut down the possibility of victims to sue Uber for the conduct of its drivers.  If the court finds that the drivers are employees, then Uber would have to face numerous law suits and/or change its business practices. 

Just because the contract between Uber and its drivers labels them “independent contractors” doesn’t mean the court will find that they are.  Courts are more concerned about how much control Uber exercises over its drivers than what they call them. For now, the federal judge in the Uber case has found that it is too close to call as a matter of law whether Uber drivers are independent contractors or employees.  This is definitely a case to watch. The ultimate outcome will determine whether or not Uber is liable for the conduct of its drivers, potentially opening it up to numerous law suits.  

Often businesses will treat workers as independent contractors, even if they should truly be treated as an employee.  If you’re being categorized as an independent contractor but are being treated more like an employee, McNamara Law Firm can help you understand your rights. 

If you’re a business owner that uses independent contractors, we can help ensure the court will treat them as such and help you avoid vicarious liability!

Committing is More Than Saying ‘Yes’

This post will also appear in the May/June issue of the Nebraska Lawyer Magazine.  

Young attorneys are busy.  Whether as a result of overly ambitious billable hour requirements, familial responsibilities, involvement in extracurricular or professional organizations, or some combination thereof, our available time is at a premium.  As a result, we need to exercise care when choosing how to commit that time.  And it’s not only our time that should be considered when making these choices.  There are a range benefits and consequences that need to be weighed before agreeing to take on a new role or activity.  

When we do decide to get involved and commit to a new project, we accept a responsibility that we’re actually going to follow through with what we’re committing to.  By adding to your own schedule, you’re giving up the free time that could be used for some other activity (or just to be kept as free time). And if you’re particularly busy already, this new project may put added strain on your existing responsibilities.   

Following through (or conversely failing to follow through) on your commitments can have a major effect on your reputation.  If you continually do what you say you’re going to do, word is going to spread that you’re someone who can be counted on.  The opposite is true as well.  

And we don’t need to say ‘yes’ to everything.  Knowing when to say ‘no’ can have a positive impact on your reputation as well.  It shows that you know how to exercise restraint.  Saying ‘yes’ to a project when you can’t truly commit to it affects other people.  It wastes their time, and can hinder the success of the group.  You’re also blocking the group from finding the person that actually could provide his or her time and energy.  

While it is important to become involved in the communities you’re a part of, it is equally important to keep your word.  

Short Introduction to Sexual Harassment Claims in Nebraska

Workplaces are supposed to be a comfortable environment for employees to come and do their work.  It is far too common for women to be victims of sexual harassment in the workplace.  The most common way that a claim for sexual harassment arises is simply from an overall workplace culture that creates a hostile work environment.  

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A corporate culture where employees are regularly telling dirty jokes, sending inappropriate emails, or having sexual relations with each other can all create a hostile work environment.  

Another form of sexual harassment which can become very serious very quickly is what's known as quid pro quo, or 'this for that'.  A claim for quid pro quo sexual harassment usually arises when a supervisor propositions an employee that he will give a promotion, raise or some other favorable treatment in exchange for sex.  Claims for sexual harassment are treated very seriously in Nebraska.  McNamara Law Firm can counsel and advise employees who believe they may have been victims of workplace discrimination or sexual harassment.

If you have customers, you need a sales agreement tailored to your business.

Much of the litigation that we deal with at McNamara Law Firm arises from contracts that go bad.  And often, the reason they goes bad is because the people involved never fully understand what they are agreeing to.  People generally expect that the deals they make are going to go smoothly.  But It can be tough to anticipate what might go wrong with an agreement before something actually goes wrong.  

While most deals go smoothly, there’s a million ways an agreement can turn into a disagreement.  

  • If John agrees to build a table for Jane, and then the price of the wood triples, does John still need to provide that table at the agreed price?  
  • If Megan hires Karen to cater her dinner party, does Megan still have to pay when the event gets rained out?  Should Karen at least pay the food costs?
  • If William agrees to purchase Brad’s boat, and William can’t get the money together, is Brad out of luck?  Does William owe anything to Brad?

Creating a thorough written sales agreement that anticipates and addresses these types of issues can keep businesses out of these costly disputes.  

In addition to the massive benefit of keeping your business out of a lawsuit, there’s a ton of other ways that you and your customers can benefit from using a clear written agreement:

  • Leaves a great impression - When you close a deal with a written contract tailored specifically to your business and the work being done, customers believe that you’re going to handle their project in a professional manner.  
  • Gets everyone on the same page - A written agreement allows for all parties to have a more complete understanding of the details relating to the services being provided.  When people know what to expect, projects go smoothly.
  • Protects business from litigation - While a well drafted written agreement is designed to keep you out of litigation,  it can tilt the stakes in your favor in case you do.  For example, you could agree that any potential legal actions must take place in Nebraska, under the laws of the state of Nebraska.  You can also limit your liability by saying who’s responsible for damages by acts of God or if a product you shipped is lost in transit.  

If you’re a contractor, plumber, photographer, craftsman or web developer, we can help your business by creating a contract that is specifically tailored to the work you provide to your customers.  Call us today to schedule a consultation!

Ode to the Legal Pad

The following piece will be published in the May/June issue of the Nebraska Lawyer Magazine.  Patrick McNamara is the Editor of the Young Lawyers' Section Page of the Nebraska Lawyer Magazine:

    Thank you to whomever invented the legal pad.  While I love my Retina iPad, iPhone with super fast LTE connectivity, and 5mm thin 27” iMac, arguably none of them have had such an impact on my productivity as the lowly legal pad.  I suspect there are not many readers of this magazine that would disagree with me.  

    Possibly the greatest attribute of the legal pad over modern technology is that you’re free to write anywhere on the page.  I’ll come right out and say it - I <3 the left margin of the legal pad.  I love that there’s a set space on the side of the page where you can add notes to your notes.  And if I want to draw an arrow from one spot on the page to another, who’s going to stop me?  Try doing that while taking notes in Microsoft Word.  Each morning I write a “to do” list on a legal pad.  Being able to physically cross off completed tasks throughout the day is a great feeling. 

    Legal pads are cheap too!  A twelve pack of legal pads is cheaper than a twelve pack of cheap beer.  I keep a pad in each of my clients’ files which I use anytime I meet the client in person or speak with them or opposing counsel on the phone.    

    One setting in particular where a legal pad excels over advanced technology is the client meeting.  Taking notes on a legal pad is infinitely more personal than typing away on a laptop.  The laptop creates both a physical and psychological barrier between you and the client.  Without being able to see what you’re typing, the client may be less willing to divulge important details that could help in your representation.  Contrast that with the legal pad, where a client may notice you writing down important details, giving him or her confidence that you are paying attention to and care about his or her issues.  

    The beautiful simplicity of the legal pad makes it a tool that every attorney should take advantage of.  I’ll leave the question of the best color legal pad for another day (hint: it isn't yellow).

Great Article about McNamara Law Published in the March 2015 issue of the Omaha Bar Association Newsletter

OBA Newsletter, March 2015 - Feature Story 

Meet a Young Lawyer Division Member: Patrick McNamara  

If you've been to an OBA event in the past two years, there’s a good chance that you heard a voice in the crowd that’s different from the rest; its speed, cadence and pronunciation giving away its northern East Coast origin. Full of energy, ideas, and always willing to talk about the finer points of New York Mets baseball, Patrick McNamara makes quite an impression on those he meets. “That’s the idea,” Patrick says with a smile, “it’s good to be known.”

            Since arriving in Omaha in 2012 with his wife, Katie (an Assistant U.S. Attorney in Council Bluffs) McNamara has done a lot to be known in the local legal community. Patrick joined the Omaha Bar Association and its Young Lawyers Division immediately, and quickly began attending events. “Those first few OBA functions were great for getting integrated into the local legal community, and especially among the young attorneys,” McNamara noted.  Patrick worked at Anderson Bressman & Hoffman for a year before going out on his own as a solo practitioner. His experience gleaned from his 3 years of practice in New York, combined with the year working with Charlie Bressman and Ryan Hoffman, gave McNamara the practice experience and confidence to build a successful practice.

            So what brought Patrick from Long Island, NY to Omaha? “My wife (Katie) is from Omaha, and when we got married in May 2012 we decided to move to Nebraska because we knew that it would be a great place to raise our family and grow our legal careers,” he said. It quickly became clear to McNamara that law practice in Nebraska varied in significant ways to that found in New York. “The difference is drastic.  Practicing in Nebraska is 100% better than practicing in New York.  The courts run much more efficiently.  The overhead is much lower.  The office space is much nicer and referrals come more easily.  Clients seem to be more reasonable in putting together a plan of action.  The lower cost of living also allows clients to have the cash on hand to afford legal services.” Patrick added, with a shudder, “It’s also nice not having to spend multiple mornings a week sitting through a 200-case cattle call as I would have in Brooklyn or Nassau County.”

            The attorneys are also much better to deal with, McNamara says. “I find that many of the attorneys here are willing to work towards a compromise in order to resolve a matter.”  In addition, “the Midwest work ethic rings true, in that there is a much quicker turnaround on discovery and document production.”

            McNamara’s engagement in the local community has also helped his practice. He’s a part of the OBA Lawyer Referral Service, from which he’s received numerous cases, some of which have been lucrative. “No doubt, it’s worth the cost to join LRS,” Patrick says. “I can’t thank the OBA enough for helping to ease my transition.  The OBA also set me up to share office space with Hightower Reff Law Firm, which has been a blessing as well.” Outside of the OBA, McNamara has also been active in the NSBA, writing and editing for the Nebraska Lawyer magazine, and active in a local BNI group, which assists in generating client leads. 

            In addition to growing his practice, McNamara has been volunteering his time with the Innocence Project, and getting to know most of the local golf courses. “I’ve played just about all the courses in the Omaha area,” he says, his stare distant as he recalls some of his better rounds. “I’m always down for playing a round at a course I haven’t played yet.”

            What advice does McNamara have for new lawyers, just starting practice? “It may be cliché but it’s so true: Don’t be afraid to ask questions and admit when you don’t know something.” When asked where he sees himself in five years, Patrick foresees a growing family with his wife, and a growing law practice, employing 2 or 3 paralegals. “Oh,” he says with a mischievous grin, “and I see myself reading about the Mets preparing for their third championship season in four years. I say three in four years because I’m a realist: I know they can’t win it four years in a row.”

Why You Need a Will (Especially if you have kids)

  The Last Will and Testament is a legal document that specifies the manner in which you would like your assets to be distributed after death.  There are a number of other benefits a will can provide as well.  For example, in Nebraska, the Will is the only place to direct who shall care for your children following your death.  

      If you were to pass away without a Will, your assets would be distributed by way of intestacy.  Intestacy is the law that governs how your assets would be distributed if you were to die without a Will.  While intestacy may appropriately distribute assets for some, it does not take into account the unique structure of the family and friends in your life.  There are also often high costs involved with administrating the estate of a person who dies intestate.  Those costs are paid directly out of the estate, depleting the gifts that pass to the intestate distributees.  

      A validly executed Will avoids many of these hassles, giving your heirs peace of mind in a time that can be very sad, hectic and stressful.  Your loved ones will feel comfortable knowing that your estate has already been planned and prepared.  Further, the Will allows you to appoint the appropriate person to administer, or execute the distribution of your assets.  It allows you to appoint your spouse, parent, sibling, or anyone else you would feel most comfortable handling the distribution of your assets.

     The Will can serve to distribute your assets in a more complex way as well.  In a situation where you would like to provide for the education of your child or grandchild for example, the Will can work to create a trust that will provide for payment of those expenses as the distributee needs them.  Setting up a trust allows you to have more control over how you would like your gift to be used, and can even be set up to protect the gift from any creditor claims against the distributee, guaranteeing your gift to be available to be used as you intended.

       Executing a Will is a simple, inexpensive way to provide comfort and peace of mind regarding the distribution of your assets following death.  McNamara Law Firm, PC, LLO can design an appropriate estate plan, individually tailored to your unique situation and needs.  

Why DeflateGate IS a big deal.

*This post will also be published in the March/April Issue of the Nebraska Lawyer Magazine.

Throughout much of late January, I saw a fair number of Facebook posts and media commentary saying that the Patriots should not be punished for cheating.  Some argued that tampering with the footballs shouldn't even be considered cheating.  They argued that it had no effect on the outcome of the game and that everyone looks for a competitive advantage, whether legal or not.  

Such arguments disregard the fact that there was an actual specific NFL rule that the Patriots violated.  But even if there wasn’t a rule relating to proper ball inflation (and setting aside the NFL’s huge problem with domestic violence), shouldn’t there be a degree of honor in how these teams conduct themselves?  Isn’t sportsmanship a thing anymore?

As lawyers, we are tasked with following the Nebraska Rules of Professional Conduct.  We’ve all heard that these rules are only a low bar, reflecting a minimum level of competency and decency that attorneys should conduct themselves with.  

Despite these rules, some attorneys regularly engage in practices akin to using an under inflated football.  Examples include providing discovery materials that have obviously been shuffled out of order, or choosing not to return phone calls despite an upcoming deadline.  Like the jaded NFL fans, these attorneys may argue that such practices are harmless and don’t really have an impact on the outcome of a case.  Unfortunately, by downplaying the significance of these practices, they are disregarding the harm it does to the integrity of the profession.      

The NFL has a special responsibility to the public; this year’s Super Bowl drew a record 120.8 million viewers.  As it controlled and created the most-watched television program in human history, the NFL has the responsibility of protecting the game’s integrity by promoting sportsmanship.  Likewise, attorneys, as stewards of the public’s interaction with the legal system, have a special responsibility to aspire to practice law as ethically as practicable, and to keep the integrity of the legal profession at its properly inflated level.